The mainstreaming requirement of the Individuals with Disabilities Education Act in the context of autistic spectrum disorders.

• Author: McDonough, Conor B.

Introduction I. Autism, Methods of Diagnosis, and Treatment A. Background on Autistic Spectrum Disorders B. Diagnosing Autistic Spectrum Disorders in Children C. Treatments for Children with Autism 1. Applied Behavioral Analysis 2. Treatment and Education of Autistic and Related Communication Handicapped Children ("TEACCH") Therapy 3. Picture Exchange Communication System ("PECS") teaching II. The IDEA, "Mainstreaming," and Judicial Tests of Compliance with the "Mainstreaming" Requirement A. A Brief History of the Development of the IDEA B. The Least Restrictive Environment: A Congressional Preference for Mainstreaming C. The Circuit Tests for Compliance with Mainstreaming Requirement 1. Roncker v. Walter 2. Daniel R.R 3. Holland 4. Summary of the Circuit Tests III. Evaluation of the Circuit Tests and of the IDEA Mainstreaming Requirement in the Context of Autistic Spectrum Disorders A. The Circuit Tests as Equivalents in the Context of Autistic Students 1. As Applied, the Tests Account for Substantially Similar Factors 2. The Circuit Tests Are Applied with Equal Deference to Local Educational Officials 3. Decisions Applying the Roncker Test Highlight Judicial Deference to the Educational Placement Decisions of State and Local Officials 4. The Daniel R.R. and Holland Tests Are not Clearly More Deferential than the Roncker Test to Educational Placement District Decisions B. Tensions Between the Underlying Principles of the Mainstreaming Requirement and the Clinical Features of Autistic Spectrum Disorders Conclusion INTRODUCTION

Autism is a brain development disorder characterized by impairments in social and communication abilities. (1) Children with autism or one of the related autistic spectrum disorders ("ASD") are eligible for special education under the Individuals with Disabilities Education Act ("IDEA"), which provides, in part, that disabled students must be educated with non-disabled peers as often as possible, a practice referred to as mainstreaming or inclusion. The federal circuit courts apply different tests to evaluate compliance with this mainstreaming requirement, but as argued in this Note, the circuit tests are effectively equivalent with respect to children diagnosed with ASDs. One significant issue in applying each of these tests is that tensions exist between the mainstreaming requirement of the IDEA and the clinical features of children with ASD diagnosis. As discussed below, children with ASD have deficits in communicative and social behaviors that tend to minimize the importance of mainstreaming for these children.

Part I of this Note provides a brief background on autism and methods of diagnosis and treatment. Part II of this Note reviews the development of the IDEA and outlines the main judicial tests for determining compliance with the mainstreaming requirement. Part III of this Note argues that despite differences in phrasing, the circuit tests as applied in the context of autistic children involve substantially the same inquiries. Part III discusses the tensions that exist between the needs of children with autism and the mainstreaming requirement of the IDEA, concluding that Congress and the Department of Education should relax the mainstreaming requirement in the context of autistic spectrum disorders.

1. AUTISM, METHODS OF DIAGNOSIS, AND TREATMENT

   1. Background on Autistic Spectrum Disorders

      Autism is a term used to describe a set of cognitive, social and behavioral impairments that are commonly found to coexist in affected individuals. (2) The disorder was first reported by Leo Kanner in a seminal publication in 1943, (3) in which Kanner reported observations of eleven children who exhibited a set of undocumented behavioral atypicalities. These include a lack of social awareness or indifference to social activities or contact and repetitive, stereotyped or ritualistic behaviors such as rocking, spinning, or drawing. (4) Affected individuals usually show limited development in language skills paired with enhancement in some cognitive areas, such as strikingly superior memory for specific sets of facts on a single topic. (5) Kanner highlighted the childrens' apparent indifference to the external world using the phrase "extreme autistic aloneness" (6) that "whenever possible, disregards, ignores, shuts out anything that comes to the child from the outside." (7)

      The contemporary understanding of the symptoms of autism is described in the Diagnostic and Statistical Manual of Mental Disorders--Text Revision (DSM-IV-TR), the handbook for diagnosing mental illness that is published by the American Psychiatric Association. (8) DSM-IV-TR categorizes autism as one of several "Pervasive Developmental Disorders" ("PDDs") including autism, Asperger's syndrome, and "Pervasive Developmental Disorder-Not Otherwise Specified ("PDD-nos")." (9) Asperger's syndrome and PDD-nos are considered less debilitating disorders than autism. (10) These three disorders are commonly referred to as "autistic spectrum disorders" ("ASDs") in reference to the continuum of behavioral symptoms that attend these diagnoses. The specific distinctions between these disorders is well beyond the scope of this Note, but these related disorders are mentioned to emphasize the complexity of making the diagnosis of autism. Autism itself is the most common of these PDDs, and recent data from the Centers for Disease Control and Prevention indicates that ASDs affect as many as one in every 150 children in the United States. (11) Autism also creates substantial emotional (12) and monetary (13) costs for educators and the taxpayers who fund school districts. At present, the etiology of autism is unknown, although research continues in the search for causes of the disease.

   2. Diagnosing Autistic Spectrum Disorders in Children

      The DSM-IV-TR describes behavioral features associated with autism, including social deficits, such as impairment in nonverbal communication behaviors (for example, eye-to-eye gaze, facial expression, body postures, and gestures) to regulate social interaction, lack of social or emotional reciprocity, significant impairments in the development of spoken language, stereotyped and repetitive patterns of behavior, interests, and activities, and persistent preoccupation with parts of objects. (14)

      Clinicians, including psychologists, pediatricians (15) and psychiatrists, parents and educators (16) play a role in diagnosing autism, and several methods exist to make this diagnosis. The first stage entails monitoring children for signs of the disorder. (17) Parents and physicians can observe whether specific behaviors or other indicia of ASD are present in the child. At the next stage, diagnostic screening is performed using questionnaires administered to parents. A common diagnostic tool is the Autism Diagnostic Interview-Revised. (18) Diagnosis is complicated by the fact that, as a spectrum disorder, the degree of impairment will differ substantially between children given the "same" diagnosis of ASD. One possible reason for such heterogeneity in outcomes for individuals diagnosed with autism is that it is not a single disease, but rather a syndrome comprising several underlying biological impairments. (19) In the context of education, a child with an ASD diagnosis is eligible for special education under the Individuals with Disabilities Education Act ("IDEA"). (20)

   3. Treatments for Children with Autism

      1. Applied Behavioral Analysis

         One widely-used intervention for children with autism is applied behavioral analysis ("ABA"). ABA relies on repeated, one-on-one training involving a therapist and the child. (21) The child is given a stimulus, such as a request to make eye contact with the therapist or point at some named feature of an object, such as the eye or nose of a doll. If the child produces the requested response to the stimulus, the therapist provides a reward to the child, such as a food the child enjoys, or an object the child appears to view as a treat, such as stickers. Although instances of ABA leading to dramatic improvements are reported, (22) children more commonly experience moderate gains. (23)

         The technique is very time-intensive, typically involving forty hours per week of therapy, and progress is generally measured over multiple years. (24) Children often enter ABA therapy at an early age, in many instances younger than three years old, and continue for several years thereafter. The duration of the therapy is accompanied by significant costs. (25) Specialized training is required to perform the therapy, which limits the availability of qualified personnel. ABA can also be a topic of dispute between parents and school districts in the creation of a child's "individualized education plan". (26) The nature of ABA demands that the child be isolated from his or her peers for substantial amounts of time. (27) As discussed below in Part III, this means that such treatments may be at odds with the Congressional preference for "mainstreaming" indicated in [section] 1412(a)(5)(A) of the IDEA. (28)

      2. Treatment and Education of Autistic and Related Communication Handicapped Children ("TEACCH") Therapy

         TEACCH uses behavior modification techniques in a manner similar to ABA and also uses one-on-one interaction, usually in a "self-contained" classroom in isolation from other peers, and with contributions from parents as "co-therapists." (29) TEACCH is aimed at the use of communication methods specifically tailored to a particular child, using not only words but also pictures or other visual aids that can communicate. The therapy is intended to provide a more flexible method of intervention than ABA, but the two techniques do share many similarities.

      3. Picture Exchange Communication System ("PECS") teaching

         PECS (30) uses drawings or images on cards to allow the child to express concepts with visual representations, rather than requiring the child to make verbal responses. (31) The goal is to assist...